IP Law Daily Republicans’ distribution of photo of Democrat could be actionable, not fair use
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Tuesday, March 20, 2018

Republicans’ distribution of photo of Democrat could be actionable, not fair use

By Sara Cracau, J.D.

Disputed issues of material fact precluded a finding of fair use in connection with mass distribution of an altered photograph of a Democratic Party candidate by the Republican National Committee (RNC), the federal district court in Missoula, Montana, has ruled. While the court denied the RNC’s motion to dismiss the photographer’s copyright infringement claim, it granted the motion as to the photographer’s state law claim for intentional interference with prospective economic advantage, as that claim was preempted by the Copyright Act. The photographer’s tort claim was premised on the RNC’s unauthorized use of the photograph and lacked an "extra element" to make the claim qualitatively different from the copyright infringement claim (Peterman v. Republican National Committee, March 19, 2018, Christensen, D.).

Work at issue. The Montana Democratic Party (MDP) contracted with photographer Erika Peterman to take photographs at an annual dinner of a Democratic candidate who was the focus of the event. The photograph at issue ("the work") depicted the candidate wearing a cattleman’s hat from behind, with three bright lights in the distance. Peterman edited and sent her photographs to the MDP, giving it limited license to use the work. She then filed for registration of the work with the U.S. Copyright Office. Subsequently, the RNC sent a mass mailing using the work to negatively depict the Democratic candidate. The mass mailing contained a direct copy of the work, altered with a treble clef incorporated in the bottom left of the image and the following text added, " For Montana Conservatives, Liberal Rob Quist Can’t Hit the Right Note."

Infringement action. Peterman filed a complaint alleging copyright infringement and intentional interference with economic advantage based on RNC’s copying, using, and distributing her work. RNC filed a motion to dismiss for failure to state a claim, contending that its use of the work constituted fair use. It further contended that Peterman failed to state a claim for intentional interference with economic advantage because that claim was preempted by federal copyright law.

Copyright infringement. The court denied RNC’s motion to dismiss the copyright infringement claim because disputed issues of fact existed that weighed against a finding of fair use. The purpose of the work was a disputed issue of fact, and the transformative character of the use appeared to be marginal. Therefore, the purpose and character of the use factor weighed against a finding of fair use. The work was an artistic depiction of the Democratic candidate rather than an informational or functional work. Therefore, the work was closer in nature to the "core of intended copyright protection." The nature of the copyrighted work weighed against a finding of fair use. Furthermore, because the entire work was "precisely maintained quantitatively and qualitatively for RNC’s use and intended purpose," this factor weighed against a finding of fair use. Finally, the court concluded that there was no basis in the pleadings for assessing the market effect of RNC’s use of the work; this was a disputed issue of fact that was not ready to analyze at this stage.

Intentional interference with prospective economic advantage. The court granted RNC’s motion to dismiss Peterman’s state-law claim for intentional interference with prospective economic advantage because the claim was preempted under federal copyright law. A state-law tort claim must include "an extra element" that renders the asserted right "qualitatively different" from those that are protected by the Copyright Act. The "extra element" must effectively alter the claim to make it qualitatively different from a copyright infringement claim.

Here, the state-law claim was preempted because the content of the asserted state-law right was within the subject matter of copyright, and it was equivalent to the exclusive rights under federal copyright law. Peterman’s claim was premised on the RNC’s unauthorized use of the work in violation of her copyright. Consequently, it was not quantitatively different from the copyright infringement claim. Although Peterman potentially claimed an "extra element" as the potential loss of business due to RNC’s use of the work when the work had special and increased value, she did not assert an extra element that fundamentally changed the nature of her claim. She did not distinguish her claim from her copyright infringement claim, since the tort claim relied on the unauthorized use of her work. In her state-law claim, Peterman contended that essentially the same rights were violated as the rights protected by federal law. Furthermore, Peterman failed to identify an independent theory of interference with economic advantage other than RNC’s unauthorized use of the work. There were no plausible allegations that RNC’s actions were intended to damage Peterman’s business or that RNC’s actions resulted in actual loss or damage.

The case is No. CV 17-66-M-DLC.

Attorneys: Erin M. Erickson (Bohyer, Erickson, Beaudette & Tranel, PC) for Erika Peterman. Ari S. Meltzer (Wiley Rein LLP) for Republican National Committee.

Companies: Republican National Committee

MainStory: TopStory Copyright MontanaNews

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